Citation Nr: 1806769	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  12-18 684	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran 


ATTORNEY FOR THE BOARD

J.L. Ivey, Associate Counsel 

INTRODUCTION

The Veteran served on active duty in the United States Navy from June 1955 to May 1959. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2015.  In December 2016, the Board remanded the issue on appeal for additional development.  There has been substantial compliance with those remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

By a December 2016 letter, the Veteran was asked to provide information necessary to adjudicate his claim of entitlement to a TDIU, to include submitting a completed VA Form 21-8940; more than a year has lapsed since the initial request, and he has not submitted the requested evidence and information.


CONCLUSION OF LAW

By failing to submit requested information and/or forms for critical evidence needed to properly adjudicate his claim of TDIU, the Veteran has abandoned such claim, and his appeal in this matter must also be considered abandoned.  38 U.S.C. §§ 5107, 7105(d)(5) (2012); 38 C.F.R. § 3.158 (a) (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

When evidence requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned.  38 C.F.R. § 3.158(a).  

In November 2016, the Veteran's representative suggested that a TDIU should be considered in connection with his then-pending claim for a higher rating for bilateral hearing loss under Rice v. Shinseki, 22 Vet. App. 447 (2009).   A VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability was mailed to the Veteran in December 2016 pursuant to the Board's December 2016 remand.  The December 2016 Board remand informed the Veteran that this form requested information regarding a veteran's occupational and educational history, which is necessary to determine entitlement to a TDIU and this form, or equivalent information, was required to adjudicate the claim.  Moreover, the December 2016 development letter informed the Veteran that he may be entitled to compensation at the 100 percent rate if he is unable to secure and follow a substantially gainful occupation because of his service-connected disabilities.  The letter further directed the Veteran that "[i]f you believe you qualify, complete, sign, and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability."  The letter also informed the Veteran that he could submit lay statements on his behalf written by himself or other individuals to support his claim. 

The Veteran's claim of entitlement to a TDIU was denied by the RO in a November 2017 rating decision and he was notified of this decision the same month.  The rating decision noted that the Veteran was asked to submit a completed VA Form 21-8940.  The rating decision states, "As of this date, we have not received a complete VA Form 21-8940. This form is required to further consider your claim."

The Board finds that there is insufficient evidence to adjudicate the Veteran's claim for TDIU.  Although he testified that he retired at age 62 in his November 2015 Board hearing, suggesting he retired in approximately 1998 - a recent VA treatment records state that the Veteran "works and does lots of outdoor activities."   See May 2016 VA preventative health screen

To date, the Veteran has not submitted a VA Form 21-8940 or comparable statement containing the requested information.  A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him from securing or following a substantially gainful occupation, and the treatment he has received for the disability(ies).  The veteran is further asked to supply information about his employment, including dates when his disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work.  VA Form 21-8940 also requests information regarding the veteran's employment, educational, and training history, to include all employers for the last five years employed, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his last job, and whether the veteran has attempted to obtain employment since he became too disabled to work.  

The critical facts at this stage are clear.  The Veteran has not provided the information or VA forms necessary for VA to adjudicate his claim of entitlement to a TDIU rating.  Although the record contains some information regarding his employment history, the Veteran has not provided all of the information necessary to adjudicate his claim for a TDIU rating.  The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate.  In such circumstances, proper adjudication on the merits is not possible.  The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned.  See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned).  Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations.  See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012).  

Hence, the Board has no recourse but to conclude that because of his failure to cooperate the Veteran has abandoned his claim.  As such, the Board finds that the appeal must be denied.


ORDER

Entitlement to a TDIU is denied.






____________________________________________
STEVEN D. REISS
 Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs